The Ukrainian constitution provides that international treaties are part of the national legislation of Ukraine.43 As a party to international human rights treaties, Ukraine has committed itself to eliminate de jure discrimination, including discrimination against women. Ukraine is also obligated to undertake toprevent discriminatory practices in the public and private sectors and provide effective remedies to those who have suffered from them. To meet these commitments, Ukraine has a duty to ensure that its laws are in conformity with international human rights law. Many experts feel that Ukraine’s constitution and legal codes provide a sufficient legal basis to guarantee equality of opportunity in employment and that the greatest shortcomings are found in the implementation and enforcement of those laws.44 However, Human Rights Watch has found that certain provisions of Ukraine’s legal system violate the rights of women. Our research also found routine violations of women’s rights under Ukrainian and international law in practice throughout the hiring process that prevent women from enjoying full equality of opportunity. Employers demonstrated little knowledgeof basic Ukrainian law as well as an unwillingness to apply laws that they knew to exist. Government officials similarly demonstrated an unwillingness to respect and enforce laws they are charged with upholding.

The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR)—collectively referred to as the international bill of rights—share the general prohibition of distinctions based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”45 At the regional level, article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides a virtually identical prohibition with respect to the rights and freedoms set forth in the Convention.46

Under the ICESCR,states must “ensure the equal right of men and women” to the rights set out in the Covenant.47 This includes the right to work.48 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) establishes the international standards for eliminating discrimination against women. CEDAW defines discrimination as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”49 CEDAW also elaborates states’ obligations to eliminate discrimination, including the responsibility “to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women.”50 Under CEDAW, Ukraine also has the obligation to “take all appropriate measures” to address the societal norms underlying many discriminatory practices, by “modify[ing] the social and cultural patterns of conduct…, with a view to achieving the elimination of … practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”51

The International Labor Organization, in Convention No. 111 Concerning Discrimination in Respect of Employment and Occupation (ILO Discrimination Convention), proscribes conduct, practices, or laws that have the “effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”52 The ILO defines the terms employment and occupation to include “access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.”53

Similarly, the Council of the European Union issued an Equal Treatment Directive in 1976 to direct E.U. member states on the implementation of the principle of equal treatment for men and women in regard to “access to employment, vocational training and promotion and working conditions and…social security.”54 Although Ukraine is not a member of the E.U., Ukrainian authorities claim the E.U. as the model for their legal and political aspirations for Ukraine, and have repeatedly expressed their desire to achieve membership in the near future.55 The Equal Treatment Directive defines the principle of equal treatment as meaning that “there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status,” and elaborates on the application of the directive to mean “that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity.”56

Both the ILO and the Council of the European Union recognize that there may be exceptions to the rule of nondiscrimination. For the ILO, “[a]ny distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”57 Similarly, according to the Equal Treatment Directive, “This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities…for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.”58 While it is possible to envision rare instances when such exclusions might be justified, in the overwhelming majority of types of employment, there is no legitimate basis for selection based on gender. Furthermore, under the principles of nondiscrimination, states have the obligation wherever possible to include before they seek to exclude. The Council of Experts of the ILO has urged that exceptions to the rule of nondiscrimination be interpreted strictly to avoid, “undue limitation of the protection which the Convention [No.111] is intended to provide.”59

International human rights law notes that discrimination is not always intentional. Facially neutral laws, regulations, policies, and practices can have a discriminatory impact. The CEDAW Committee has stated that the definition of discrimination in article 1 of the convention covers both direct and indirect discrimination by public and private actors.60 The ILO Committee of Experts has stated that indirect discrimination within the meaning of Convention No. 111 includes that which is based on “archaic and stereotyped concepts with regard to respective roles of men and women… which differ according to country, culture, and customs [and] are at the origin of types of discrimination based on sex.”61 In 1999 the European Court of Justice, which ensures the law regulating E.U. treaties, issued a finding that indirect discrimination occurs when “a [national] measure … has a more unfavorable impact on women than on men.”62

Using the criteria discussed above, facially neutral labor or social legislation and policies that have a disproportionate impact on women and that are not justified by the inherent requirements of a job can be considered impermissible disparate impact discrimination. While the Ukrainian constitution guarantees equality between women and men, provisions within the Ukrainian labor code set arbitrary limitations on the kinds of work that women can be hired to perform based on stereotyped concepts and non-objective criteria. In addition, extensive maternity provisions and the emphasis on women as the sole care-giver within the family have the effect of rendering women unwanted candidates in the eyes of some employers. Women and representatives of women’s organizations Human Rights Watch interviewed support these pregnancy and maternity benefits, but also call for greater emphasis on family responsibilities being shared between both parents. Furthermore, the European Court of Justice has held that discrimination “cannot be justified by the financial burden which maternity leave can cause an employer.”63

The language of the Ukrainian constitution, adopted in 1996, reflects the country’s obligations under international law. The constitution provides that “[t]here shall be no privileges or restrictions based on race, color of skin, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics.”64 In addition, the constitution guarantees that

Equality of the rights of women and men is ensured: by providing women with opportunities equal to those of men, in public and political, and cultural activity, in obtaining education and in professional training, in work and its remuneration; by special measures for the protection of work and health of women; by establishing pension privileges, by creating conditions that allow women to combine work and motherhood; by legal protection, material and moral support of motherhood and childhood, including the provision of paid leaves and other privileges to pregnant women and mothers.65

With respect to employment, the constitution guarantees that “[e]veryone has the right to labor, including the possibility to earn one’s living by labor that he or she freely chooses or to which he or she freely agrees. The State creates conditions for citizens to fully realize their right to labor, guarantees equal opportunities in the choice of profession and of types of labor activity.” However, the constitution specifies, “The employment of women and minors for work that is hazardous to their health, is prohibited.” 66 The constitution also provides additional guarantees related to employment, including rights to a minimum wage, timely payment of wages, strike, rest, and social protection for disability, unemployment, or old age.

The Ukrainian labor code67 also provides specifically for the equality of labor rights of citizens by stating that “Ukraine guarantees equality of labor rights to all its citizens, regardless of their origins, social and economic status, race, nationality, gender, language, political views, religion, sort and type of occupation, residency, and other circumstances.”68 Further protections against discrimination are found in article 22 of the labor code, which prohibits ungrounded refusal of employment, including on the basis of sex.69 Chapter seven of the labor code, titled “Women’s Work,” includes fifteen articles regulating the employment of women, including pregnant women and women with young children. Chapter seventeen elaborates social insurance for employees.

While provisions of the Ukrainian labor code regulating the working conditions of women are designed to have a positive social impact, many of these measures are discriminatory. Such laws are incompatible with the principle of gender equality and endorse discrimination against women in many types of work. The Ukrainian labor code provisions that prevent women from holding certain jobs or working in certain conditions are not based on any objective criteria. The arbitrariness of established laws prohibiting the employment of women in hazardous conditions is reinforced by evidence that large numbers of women nevertheless do work in hazardous conditions and in prohibited professions.70 Higher wages and privileges such as additional paid vacations, shorter working days, and free meals all attract women to hazardous work, including jobs that they are legally prohibited from holding.71 When establishing laws to protect the health and safety of workers, the Ukrainian government should seek to protect both male and female workers from unsafe and hazardous conditions, not just women.

In addition to being arbitrary and frequently violated, many Ukrainian laws go beyond the protections for workers allowed under ILO conventions. ILO Convention No. 45 prohibits the use of women’s labor in underground work in mines.72 Article 174 of the Ukrainian labor code includes a similar provision,73 but also prohibits the use of women’s labor in “work in difficult jobs and jobs with harmful and unsafe working conditions,” and from “lifting and transferring heavy things, whose weight exceeds the established norm for women.”74 If the ability to lift heavy objects or work in unsafe conditions is central to the job description of a given position, then these abilities should be established as objective employment criteria unrelated to the gender of a candidate. Women should not be presumptively deemed unable to lift a specified weight or to work in hazardous working conditions and thus denied work.

Many legal scholars have found that even ILO standards regarding the protection of women in employment are discriminatory in many cases, noting that “an inherent conflict arises between international standards to protect women and standards that promote equality between men and women.”75 Often, ILO norms have “propitiated women to be kept away from many economic activities or working areas, thus … maintaining them at a disadvantage in relation to men… [T]his ‘over protection’ [has] made [women] the object of discrimination instead of protection.”76 In addition, “special protection reinforces negative stereotypes. Women are perceived as unable to make reasonable decisions… and suitable only for work in the home since they are more fragile.”77 In order to effectively promote gender equality and eliminate discrimination against women, protective legislation should be reformed. “The best response to reform of protective legislation against women is to extend protective legislation to apply to both men and women” equally. 78

Another practice that limits women’s access to employment is the use of gender specifications in job vacancy announcements. Job advertising in private publications and at state agencies regularly includes gender specifications. However, these specifications are not limited to harmful or unsafe jobs that women are prohibited from holding under Ukrainian law, but appear also for jobs for which there are no legal bases for gender specification, such as managerial positions. Human Rights Watch research revealed that while employers sometimes excluded a woman from certain employment, including managerial positions, because the job involved heavy lifting, employers did not specify this in terms of legal prohibitions on heavy lifting. Furthermore, the general disregard for labor laws demonstrated by employers suggests that their unwillingness to hire women for certain jobs was not based on legal prohibitions, but rather on archaic and stereotypical perceptions about women.

Employers also routinely told both job applicants and Human Rights Watch that they are reluctant to hire women owing to extensive maternity and family protections afforded to women under Ukrainian law. And, if women are hired, employers often refuse to grant women the full benefits guaranteed to them under law. The provisions for pregnant mothers and mothers with small children are numerous and in many cases meet or exceed ILO standards. Similar protections are not afforded to fathers despite the fact that the ILO Workers with Family Responsibilities Convention recognizes “the need to create effective equality of opportunity and treatment as between men and women workers with family responsibilities and between such workers and others.”79 The convention also obligates each member state to “make it an aim of national policy to enable persons with family responsibilities who are engaged in employment to exercise their right to do so without being subject to discrimination.”80 In both law and in practice Ukraine fails to meet these obligations.

In Ukraine, article 179 of the labor code regulates maternity leave. Every woman is guaranteed seventy days leave prior to childbirth and fifty-six days after birth. During this period she will receive her full salary.81 If a woman chooses, she can take an additional leave until the child reaches the age of three, during which time she will receive social insurance payments from the state but not her salary.82 These privileges can be granted to men or other family members only if this person, and not the mother, is the primary caregiver of the child.

Article 184 of the labor code states that employers cannot refuse to employ a woman or reduce her a salary because she is pregnant, or has children under three or is a single mother with children under fourteen or with disabilities. If an employer denies a pregnant woman employment, then he or she must supply in written form an explanation of the refusal. Article 184 explicitly states that a woman can sue an employer for refusal of employment or a reduction of salary. This article also prohibits the dismissal of pregnant women, women with children under three (or with children under six, in the case of particular medical conditions) or single mothers with children under fourteen or with disabilities. Effectively, this means that every woman has the right to take a maternity leave of up to three years, with her job guaranteed at the end of her leave.83 These protections are more extensive than those provided under the ILO Maternity Protection Convention.84 In particular, Ukraine offers specific provisions to women with children of certain ages, and not just to women who are pregnant and nursing, and prohibits the refusal of employment or reduction of salary of a pregnant woman.

Several articles in the Ukrainian labor code regulate the kind of work women can do during pregnancy and while their children are under three, if women do return to work before the end of the maximum three-year leave.85 Article 176 prohibits the employment of pregnant women and women with children under three years old “in night work, work requiring overtime, weekend work, and on business trips.”86 Article 177 prohibits sending women with children between the ages of three and fourteen on business trips without the woman’s consent.87 A father can only be granted these protections if he raises children “without a mother (or if the mother undergoes extended hospitalization).”88 Article 178 requires the transfer of pregnant women and women with children under three to work with “lower norms of production, lower norms of service, or a different job” that is easier and “excludes harmful factors of production.”89 In addition, articles 51 and 56 obligate employers to reduce working hours or provide part-time jobs to women with children under fourteen or with disabilities. Fathers do not receive these protections.90 With the exception of a prohibition of employing pregnant women in night work, there are no international standards that require any of these measures under Ukrainian law.91 Indeed, ILO conventions concerning maternity protection seek to ensure that women have temporary options regarding their employment during and after pregnancy and do not deny women the choice of continuing to perform their usual work.92

Several articles of the Ukrainian labor code outline further protections for mothers that go well beyond ILO standards. Article 182-1 requires employers to provide an additional five days of paid vacation to a woman with two or more children under fourteen or a child with disabilities. 93 Article 185 requires employers to provide pregnant women and women who have children under fourteen years old or with disabilities a place in a retreat facility [sanatorium] and provides them with unspecified “additional material help.”94 These benefits are extended to a father only if he raises a child in the absence of a mother. Finally, article 186 requires “enterprises and organizations widely utilizing women’s labor” to organize “day cares, kindergartens, breastfeeding rooms, and rooms for female hygiene.”95 The code does not offer a definition for how widely used women’s labor must be in order for employers to be obligated to provide such services.

43 Article 9 of the Ukrainian constitution states, “International treaties that are in force, agreed to be binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.” Constitution of Ukraine, adopted at the Fifth Session of the Verkhovna Rada of Ukraine on June 28, 1996.

46 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The European Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty System No. 005, Rome, November 4, 1950, ratified by Ukraine on September 11, 1997. The Convention is commonly known as the European Convention for Human Rights (ECHR).

47 ICESCR, article 3. According to the UN High Commissioner for Human Rights, “Women often suffer substantial and disproportionate difficulties in securing human rights, including economic, social and cultural rights. Article 3 guarantees that men and women possess precisely the same legal entitlement to the rights set forth in the Covenant and that, if necessary, special measures will be employed by States parties to ensure that this position of equality is attained…Together, article 3 and article 2, paragraph 2, thus provide significant legal protection against all forms of discrimination in the pursuit of economic, social and cultural rights.” Office of the High Commissioner for Human Rights, Fact Sheet No. 16 (Rev. 1), The Committee on Economic, Social, and Cultural Rights [online], http://193.194.138.190/html/menu6/2/fs16.htm

54 Equal Treatment Directive, Council of the European Union Directive 76/207/EC, February 9, 1976, article 1(1).

55 According to Borys Tarasnyk, chair, Ukrainian Parliament Committee on European Integration, “Associated Membership, which is the status Ukraine is striving to obtain, would be a step in Ukraine’s endgame to full E.U. membership,” as quoted in “Tacis Programme: Points of View,” The EU and Ukraine no. 27 (August 2002) [online] http://europa.eu.int/comm/europeaid/projects/tacis/publications/newsletters/tacis_newsletter_ukraine_082002_en.pdf (retrieved May 31, 2003).

59 International Labor Conference, Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 75th Session, 1988, Report III (Part 4B) (Geneva: International Labor Office, 1996), p. 138.

60 See for example, “CEDAW Committee Concluding Comments on the Belize initial report,” cited in United Nations/Division for the Advancement of Women, Assessing the Status of Women: A Guide to the Reporting Under the Convention on the Elimination of All Forms of Discrimination Against Women (New York: United Nations, 2000), p. 102.

62 Court of Justice of the European Union, Judgment of the Court in Case C-167/97 Regina v. Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, February 9, 1999, paragraph 58.

63 Court of Justice of the European Union Judgment of the Court in case C-109/00 Tele Danmark A/S v. Handels- og KontorfunkionFrernes Forbund I Danmark October 4, 2001, paragraph 28.

70 According to the State Committee on Statistics, over 16 percent of all women are employed in conditions that are “hazardous to their health.” In some professions, such as ferrous metallurgy, microbiology, chemical and petrochemical industry, fuels, and medicine, over one-third of all women employed work in hazardous conditions. State Statistics Committee of Ukraine, Labor in Ukraine 2001: Statistical Compilation (Kyiv: State Statistics Committee of Ukraine, 2002), p. 390.

72 This convention provides for exceptions for non-manual and other types of work. ILO Convention No. 45 Concerning the Employment of Women on Underground Work in Mines of all Kinds, conference session 19, adopted June 21, 1935, (entered into force May 30, 1937), ratified by Ukraine on August 4, 1961.

73 Ukrainian Codex of Laws on Labor, article 174. Article 174 prohibits the use of women in underground work, but lists some exceptions. The specific kinds of underground work permissible for women to hold is determined not by the labor code but by an additional normative act—the archaic Decision No. 292- Decision of the State Committee for Labor of the USSR, August 30, 1957, “On confirmation of the list of positions, connected with underground work, in which it is permissible, as an exception, to accept the work of women.”

74 Ukrainian Codex of Laws on Labor, article 174. Similarly, article 175 prohibits the hiring of women for work at night, except in the case of an emergency and as a temporary measure. Ukraine has not ratified ILO Convention No. 8 Concerning Night Work of Women Employed in Industry, or ILO Protocol 89 to the Convention Concerning Night Work of Women Employed in Industry. The particular types of jobs currently prohibited for women and the acceptable limits of weight for women to lift were determined by two orders issued by the Ministry of Health of Ukraine in 1993. Order No. 256- Order of the Ministry of Health of Ukraine, December 29, 1993, “On Confirmation of the list of difficult work and work with harmful and dangerous conditions of work, on which it is forbidden to accept women’s labor” is a twenty-two page document cataloging the kinds of work for which “it is prohibited to accept the women’s work.” The list includes over 725 professions in forty different fields, including metal processing, chemical production, railroad, motor, sea, and river transportation, textiles and light industry, printing, agriculture, meat and fish processing, bread production, and many others. Order No. 241- Order of the Ministry of Health of Ukraine, December 10, 1993, “On confirmation of the maximum norms for women for lifting and transfer of heavy things” establishes limits for lifting for women. Maximum norms are: “for lifting and transfer of loads with alteration with other work (up to two times per hour)—10 kg; for lifting and transfer of loads constantly for the duration of a work shift—7 kg; total weight of load, transferred during the duration of each hour of work should not exceed- from a work surface—350 kg.; from the floor—175 kg; during transfer of loads on carts or in containers, the applied force should not exceed 10 kg.” Official Website of the Verkhovna Rada of Ukraine [online] http://rada.gov.ua/laws/pravo/new/ (retrieved June 4, 2003).

75 Lance Compa, “International Labor Standards and Instruments of Recourse for Working Women,” Yale Journal of International Law 151 (1992), p. 151.

76 Aida Gonzalez Martinez, “Human Rights of Women,” Washington University Journal of Law and Policy 157 (2001), pp. 164-165. In seeking protection, women should be able to “seek appropriate measures themselves either by bargaining directly with employers or through legal, legislative, and political action.” Compa, “International Labor Standards and Instruments of Recourse for Working Women,” p. 171.

77 Christine Haight Farley, “Men May Work from Sun to Dawn, But Women’s Work is Never Done: International Law and the Regulation of Women’s Work at Night,” Circles: Buffalo Women’s Journal of Law and Social Policy 44 (1996), p. 61.

82 Ukrainian Codex of Laws on Labor, article 179(2). The current monthly sum provided to women with children under three is 80 Ukrainian hryvna (U.S.$15).(One Ukrainian hryvna is worth approximately U.S.$0.19.) Women may also use their annual vacation to extend their maternity leave, and maternity leave is considered part of the length of service recorded for all workers to determine the level of pensions. Ukrainian Codex of Laws on Labor, article 180, 181.

83 Ukrainian Codex of Laws on Labor, article 184. These prohibitions are repeated in article 134 of the Criminal Code and are punishable with correctional labor for up to one year, or the restriction of the right to hold specific positions for up to two years.

84 ILO Convention No. 103 Concerning Maternity Protection (Revised 1952), conference session 35, adopted June 28, 1952, (entered into force September 7, 1955), ratified by Ukraine on September 14, 1956. Ukraine has not ratified ILO Convention No. 183 Concerning the revision of the Maternity Protection Convention (Revised), 1952. Convention No. 103 provides for a maternity leave of at least twelve weeks, with not less than six weeks provided after childbirth, with possible extensions in the case of illness, and guarantees cash and medical benefits provided by social insurance or public funds. Convention No. 103 also states that it is unlawful for an employer to dismiss a woman on maternity leave.

85 Women who return to work are guaranteed breaks for breastfeeding. Ukrainian Codex of Laws on Labor, article 183.

91 The prohibition on night work is the only limitation that may find legitimacy in international law. ILO Protocol No. 89 to the Convention Concerning Night Work of Women Employed in Industry (Revised 1948), conference session 77, adopted June 26, 1990 (entered into force June 26, 1990) upholds the original Convention’s prohibition on employing women, without exception, in night work during a sixteen week period before and after childbirth, but allows for national laws to allow the lifting of the prohibition “at the express request of the woman worker concerned.” While not extending this option to women, article 55 of the Ukrainian Codex of Laws on Labor, “Prohibition of work at night” does allow people with disabilities the option of working at night at their request. Ukraine has not ratified either Convention No. 89 or Protocol 89.

92 Article 3 of the Maternity Protection Convention states that “pregnant and breastfeeding women are not obligated to perform work which has been determined by the competent authority to be prejudicial to the health of the mother and child.” ILO Convention No. 183 Concerning the revision of the Maternity Protection Convention (Revised), 1952, article 3.